October 29, 2010

Misguided poster child for New York Times to claim "No Justification" for the death penalty

The New York Times this morning has this notable editorial headlined "No Justification," which uses the latest kerfuffle over Arizona's execution of Jeffrey Landrigan earlier this week to assail the death penalty. Here is how the editorial begins:

Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution.

In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.

Because Jeffrey Landrigan had his substantive appeals heard and decided by the Supreme Court back in 2007, and because he had 20 years (at Arizona taxpayers' expense) to pursue appeals of his 1990 death sentence, I found bothersome the assertion that the "system failed him at almost every level." I went back and reviewed the Supreme Court's ruling in his case, and these snippets especially stood out:

Jeffrey Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona....

[At the penalty phase for his Arizona murder, responding] to counsel’s statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan’s first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just “a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived.”

To review, Landrigan was convicted of murder in 1982 and then, while being punished for that severe crime, he tried to murder a fellow inmate and then he escaped from prison and did murder an innocent man. Seems to me that Landrigan is a poster child for sound justifications for the death penalty. He was a mortal threat to fellow inmates when imprisoned and also a threat to escape and kill again. A punishment of life imprisonment would subject prisoners, prison guards and even outsiders to persistent mortal risks.

In short, for such a violent and dangerous multiple murderer like Landrigan, it is hard to know what punishment other than death would be effective or just. Any yet the New York Times editorial page is suggesting this case shows the death penalty has "no justification" and is an example of the "the huge injustice of the death penalty"?

I understand and respect those abolitionists who adopt the categorical moral view that the death penalty is never justified even for the most brutal and remorseless mass murderer. But, given that our democratic system of laws has not embraced that position in every state, it strike me as highly misguided for those with abolitionist views to hold up Landrigan's as an example of the failings of our system of capital punishment and the "the huge injustice of the death penalty."

Comments

Also, by omitting those details, the Times tries to paint him far more sympathetically than he in fact deserves.

Posted by: Marc Shepherd | Oct 29, 2010 10:39:38 AM

Doug. We know that Landrigan committed murder and the other history of violence ..... but you choose to turn a blind eye to those factors which, in a fair and just system, demand more than a passing consideration and dismissal. The facts are more complicated than either of us can explain here, but a Former US Attorney for Arizona spelled some of them out as recorded by StandDown Texas at - standdown.typepad.com/weblog/2010/10/the-landrigan-case-in-arizona.html
extract:
"Justice Clarence Thomas, writing for the slim majority, said the never-presented evidence "would not have changed the result."
Thomas' statement turned out to be very wrong.
The sentencing judge has now stated under oath that if she knew about Landrigan's brain damage, fetal alcohol syndrome, genetic predispositions and parental abandonment, she would not have sentenced him to death.
No court has ever heard the mitigating evidence about Landrigan. And yet, within days, he could be executed in the name of people who care about fairness and justice.
Citizens count on the court system to correct its own errors. When the court system fails to correct itself, it is the role of the clemency board and the governor to fix what has been broken.
To be sure, Jeffrey Landrigan must be held accountable. Life in prison would serve the purposes of punishing him, keeping the public safe and upholding the Constitution."
These remarks in particular are damning of the system you defend, but which the New York Times and others uphold as a necessary Gold Standard of a fair and just judicial system. The simplistic view that "he done it therefore he must pay with his life" has no place in the 21st Century. The excuse that the Constitution, apparently, does not forbid the death penalty is no defense that it is not abolished. It is time to understand that whilst the death penalty has been restrained by the Supreme Court in its rulings against the execution of children and some mentally impaired persons, it is incapable of challenging the political agenda by which the death penalty is actively sustained in some states. In that, Roberts, Scalia and Thomas are supremely and contemptibly responsible.

I used to be indifferent about the death penalty. After spending a year in the chambers of Judge Gilbert Merritt, though, I came to see it for the barbaric form of punishment that it is.

Posted by: amorgan | Oct 29, 2010 10:45:45 AM

amorgan, in revealing yourself as a former Merritt clerk, prepare for an onslaught of disdain from some of the usual suspects of this comment board. I clerked for one of Merritt's closest cohorts on the Circuit, and I can tell you that some see our former bosses as second only to the death row inmates.

When the case got to the Supreme Court, the majority overturned the stay, saying there was “no evidence in the record to suggest that the drug obtained from a foreign source is unsafe.” There was no evidence — either way — because Arizona defied orders to provide it.

There is more to promoting respect for the law than bloodlust satisfaction. If the DP is to be respected and accepted, the government should always obey the law and avoid even any perception of misconduct from investigation through execution. The bloodlust will wane as more and more people come to understand how blind faith in the system caused the execution or near execution of innocent people due to misconduct or faulty investigations.

Posted by: George | Oct 29, 2010 1:24:14 PM

This entry illustrates two things. The first is the intolerance and arrogance of abolitionists toward the (substantial majority) who support the DP. This ranges from peter's typical holier-than-thou lecture to A.Nony.Mous's preemptive dismissal of whoever might show up with an opposing view.

The second is why you can't help liking Doug Berman. No one could honestly say he leans to the prosecution side, but he has the independence of mind to evaluate the DP on its overall merits. Doing so, he comes out pretty much in the same place as Barack Obama and Abe Lincoln.

Posted by: Bill Otis | Oct 29, 2010 2:05:24 PM

@ George
Hours after the board voted to stay the execution so the courts could examine the DNA issue, the court rejected his appeal for DNA testing. The issue was moot.

Michael, you're right. We are intolerant. We dont tolerate weak nonsense in here, and your comments are just that. Bone up, and then come back when you've got the game to hang. You got clowned over Baze, and now you're just tossing insults.

Posted by: federalist | Oct 29, 2010 7:18:57 PM

MikeinCT, what court and why? Maybe the government withheld the DNA not matching like it withheld details on the imported killer drugs.

Posted by: George | Oct 29, 2010 7:25:58 PM

Michael Drake --

You have a characteristic style of using a sentence or two to poke at the edges without making a substantive argument. That style is on full display here.

One thing I note in your post is that you don't deny or attempt to deny that abolitionists are indeed arrogant and intolerant of the opposition.

Still, scanty as substance may be in your posts, you DO have Anon (Oct 29, 2010 3:03:20 PM) beat.

Posted by: Bill Otis | Oct 29, 2010 9:03:17 PM

George --

Why are you having so much difficulty understanding that a state is not required to disclose the origin of the drug (or anything else about it) unless the defendant FIRST demonstrates that it is sure or very likely to produce severe pain?

The requirement of a preliminary showing by the moving party isn't exactly unknown in the law. In fact it's utterly routine. The alternative is that the moving party (Landrigan) could endlessly ask questions having no factual basis, and FOREVER stall the relief to which respondent is entitled by a pre-existing judgment (here, the carrying out of the death penalty).

This is really elementary and not a bit hard to understand.

Posted by: Bill Otis | Oct 29, 2010 9:13:24 PM

"This is really elementary and not a bit hard to understand" that the government got off on a technicality because the state withheld evidence. The state withheld evidence because the FDA and federal law presumes unapproved drugs are deficient until proven otherwise.

Posted by: George | Oct 30, 2010 3:59:27 AM

George --

You can't possibly be this obtuse. The state did not "withhold evidence." The state was required to produce evidence only AFTER the defendant made a preliminary factual showing that the drug would surely or very likely produce severe pain. Assuming arguendo that there is a presumption that foriegn drugs are, as you say, "deficient," (and I assume no such thing), that is still short of the specific showing Baze demanded, which is a preliminary showing of a great likelihood that the would produce severe pain. Generalized "deficiency" is insufficient.

Landrigan's shot-in-the-dark demand for court review of the drugs is exactly what the Baze majority ANTICIPATED AND FORBADE. The Baze Court understood that, unless death row defendants were required to make a SPECIFIC PRELIMINARY SHOWING OF FACT that severe pain was highly probable, they could interminably delay their executions by asking one baseless question after the next, ad infinitum.

The problem you're having is that you're fine with executions being blocked forever, but the Baze Court isn't, and for that reason prohibited exactly the "question-everything-no-facts-needed" tactic Landrigan attempted here.

Posted by: Bill Otis | Oct 30, 2010 6:10:21 AM

Bill. I am sure we all understand the get-out clauses that the state applies in this and many other issues. The fact of the matter is that the onus of proof is too heavily weighted on the defendant. If the state is to claim the right to kill, and claim that the methodology is painless, then the state should have the responsibility of providing scientific proof before implementation.
But this is a side issue to the main argument of this thread. There were far more fundamental reasons, some of which have already been outlined, why Landrigan was wrongfully executed.
In the interests of even-handedness, perhaps Doug would have been advised to bring his expert opinion to the case of Anthony Graves, recently released after 18 years of incarceration, 12 on death row, after falsely being accused and convicted of murder in Texas.
As Michael Landauer of the Dallas Morning News puts it:
deathpenaltyblog.dallasnews.com/archives/2010/10/we-should-greet-anthony-graves.html
"I could not be happier for Anthony Graves, whose personal nightmare of being wrongly accused in a 1992 murder is finally over. The Burleson DA said yesterday, "He's an innocent man." Not, "We don't have enough facts to retry this man." That admission makes me happy for Graves, but angry at the same time.
What was done to Anthony Graves was pure human error, easily avoided, and (frighteningly enough) easily duplicated. Prosecutors chose to believe one lie from an admitted and known liar -- the one lie that could send Graves to death row and put a pelt on their wall and a trophy in their case. We should all be disgusted about what was done to Anthony Graves even as we celebrate his freedom after 12 years on death row and four years in a county jail. His lawyers proved that prosecutors withheld evidence (a statement from the only eye witness in the case who recanted). That technical trial error, not the truth, got the original conviction tossed out. Pride wounded, prosecutors vowed to try again, despite the fact that there was no physical evidence linking Graves to the case."
From the Houston Chronicle:
Kelly Siegler, a prosecutor hired to re-try Graves, agreed with Parham.
"After months of investigation and talking to every witness who's ever been involved in this case and people who've never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder," Siegler said.
"That should chill you to the bone. That should make you angry. That should make you question how a man could be sent to death row by a jury that found him guilty beyond a reasonable doubt. That jury was lied to, by the real killer and by prosecutors who said they were representing you and me, the people of Texas, in this case. That makes me mad."

On the second anniversary today (30th), of the wrongful execution of an innocent friend in Texas, I have no hesitation in re-stating my belief that not only is the death penalty process error-prone, but that ultimately it is corrupt - corrupt because the possibility of innocence is subjugated to the desire within the judiciary and prosecution services, to maintain face .. to uphold a myth (perpetuated by Scalia amongst others) that the death penalty process is both fair and error-proof. It is demonstrably neither and therefore it cannot represent Justice.

Peter: To avoid hypocrisy, do not engage in any transportation, including walking. It is neither fair nor error proof when ten times as many innocent people are killed crossing the street as are executed, and hundred times as many innocent victims of the death penalty.

The answer is, John K, is that the defendant has to make a showing first. In this case, he didn't. Thus, we never get to discovery. I get that you guys don't like that, but that's Baze (or are you still disputing that?). Perhaps, if there really were a case to be made for this, that wise Latina and the brilliant Harvard Dean would have made it. They didn't. Instead, they meekly submitted a vote.

Posted by: federalist | Oct 30, 2010 11:18:09 AM

John K --

Defendants DON'T have to show the drugs were painful. They have to show that there is a PROSPECTIVE high likelihood of pain. That can be done with animal studies, I suppose, or the testimony of doctors who used these drugs in operations and found that they didn't put the patient out as advertised.

Federalist puts his finger on it when he says that the real problem here is that those who take the side of the killer -- which is what you're doing -- simply don't like the way Baze was decided.

As I keep saying, and as your side resolutely (but understandably) keeps ignoring, if the courts do not impose a PRELIMINARY factual showing on the defendant, and he is thus free to demand discovery without such a showing, he will be able to launch an infinite number of discovery demands, thus delaying the execution forever. As Baze points out, as long as the DP is a permissible punishment, that defense ploy is not going to be allowed.

And a ploy is exactly what it is. It's past time for you and George to admit it.

Posted by: Bill Otis | Oct 30, 2010 12:24:07 PM

"You have a characteristic style of using a sentence or two to poke at the edges without making a substantive argument."

No, but you can. I cited the authority already that the FDA presumes drugs not approved could be deficient (mislabeled, forgery, outdated, etc., etc.) and I am not defending killers. The argument would be the same if someone got a citation for running a red light and the government knew the signal was broken but withheld it, but that may be weak analogy because I know of no law that requires to government to fix traffic signals like the requirement for FDA approval. SCOTUS did not rule that illegal drugs were permissible despite a lack of showing there could be excessive pain. We have no idea if the manufacturer of the drug (Archimedes Pharma UK) lived up to FDA standards or not, but federal law presumes not and apparently British law forbids exporting for drugs for executions. So that is two countries laws that were violated.

Posted by: George | Oct 30, 2010 1:42:48 PM

You had your pound of flesh. Happy ?

Posted by: claudio giusti, italia | Oct 30, 2010 2:20:13 PM

claudio --

I'm happy Baze was adhered to by the Supreme Court, you bet. But if you want to see me REALLY happy, check back late Tuesday night.

Thanks for asking!

Posted by: Bill Otis | Oct 30, 2010 2:52:27 PM

George --

You're not really obtuse. You're BEYOND obtuse.

"I cited the authority already that the FDA presumes drugs not approved could be deficient (mislabeled, forgery, outdated, etc., etc.)..."

Baze was an Eighth Amendment case. It deals with the prospect of an unconstitutional degree of PAIN, not anything else. And pain was the whole focus of Landrigan's suit.

"...and I am not defending killers."

When you support litigation that would indefintely postpone the DP for a fellow who killed twice, you most assuredly are defending killers.

"The argument would be the same if someone got a citation for running a red light and the government knew the signal was broken but withheld it, but that may be weak analogy because I know of no law that requires to government to fix traffic signals like the requirement for FDA approval."

How many times do I have to say this? FDA approval has nothing whatever to do with the Eighth Amendment. Zip. Nada. Zilch. The only possible reason a US district court could have to delay a state execution is on Eighth Amendment/Baze grounds. If the FDA wants to bring a case, fine, let it. But that is not this case. Under your "logic," Landrigan could just as easily have demanded disclosure of whether the death gurney were illegally imported, or whether Arizona bought it in the USA but didn't pay the bill, making its possession "illegal." Good grief.

"SCOTUS did not rule that illegal drugs were permissible despite a lack of showing there could be excessive pain."

That's because the "legality" of the drug does not affect the Eighth Amendment analysis. Only its likelihood of causing pain does that.

"We have no idea if the manufacturer of the drug (Archimedes Pharma UK) lived up to FDA standards or not, but federal law presumes not and apparently British law forbids exporting for drugs for executions."

See above.

"So that is two countries laws that were violated."

Take it up with Eric Holder and Dominic Grieve. Tell them about the "illegal" death gurney, too.

P.S. I am, however, pleased to see that you are so hung up on FDA approval for drugs. Does that apply to marijuana as well?

Posted by: Bill Otis | Oct 30, 2010 3:28:54 PM

Bill says "...the real problem here is that those who take the side of the killer -- which is what you're doing -- simply don't like the way Baze was decided."

I prefer to think I'm siding with citizens exercising (exhausting?) rights, be they convicted killers or not.

That said, federalist is right. I don't like the Baze decision any better than other similarly cynical, sinister rulings in which mostly conservative justices seem to pride themselves on setting the bar just a bit higher than any defendant is likely to be able to clear.

And speaking of ploys, is there a bigger more reliably successful ploy than the one the government resorts to each time it argues that doing the right thing (such as relaxing asinine procedural rules in order to fully consider life and death issues) would be unacceptably inefficient.

Exactly how much injustice and needless misery have been delivered in the name of keeping things tidy and on track is anybody's guess.

Posted by: John K | Oct 30, 2010 3:30:30 PM

John K --

I litigated in federal court for about 20 years. The reason defendants lose their cases is that they have lousy cases.

Posted by: Bill Otis | Oct 30, 2010 4:38:15 PM

In communist China Billy Otis will be the happiest person in the world

Posted by: claudio giusti, italia | Oct 30, 2010 5:06:05 PM

claudio --

The subtlety of your thinking brings credit to the abolitionist movement -- about as much credit as it deserves.

I like Claudio. He represents the Euro mind set. They think government is the solution, and respect the functionary. We think government is the problem, and government workers are worthless, bloodsucking trash.

Not a problem, sir. I appreciate your clarifying things and your generous remarks.

Posted by: Bill Otis | Oct 30, 2010 10:43:34 PM

King Obtuse said: "How many times do I have to say this? FDA approval has nothing whatever to do with the Eighth Amendment. Zip. Nada. Zilch."

Says King Obtuse, not SCOTUS. What SCOTUS said was that there was no showing that the drug was illegal because it was not FDA approved. Like the Times article correctly pointed out, the defense stumbled, but more likely the one who could offer the proof was afraid of doing so, as if with a cartel. That is not the same as saying states can break federal laws with impunity. SCOTUS never so ruled. Saying there was no showing or offer of proof is NOT the same as saying there was a showing and offer of proof but tough luck anyway.

Posted by: George | Oct 30, 2010 11:01:44 PM

George --

You maintain that, "What SCOTUS said was that there was no showing that the drug was illegal because it was not FDA approved."

You carefully avoid QUOTING what SCOTUS said, and with good reason. What it actually said was (emphasis added): "There is no evidence in the record to suggest that the drug obtained from a foreign source IS UNSAFE."

That's where you're missing the boat. It is the safety of the drug (for purposes of avoiding severe pain) and not its FDA approval vel non, or its source, that governs whether it was permissible for Arizona to have proceeded with the execution.

Neither Arizona nor any other party is required to offer proof OF ANYTHING when the opposing party has the initial burden of making a preliminary showing and defaults on that burden. That is not called hiding. It's called following the rules of discovery.

Still, you're making progress; at least you don't repeat your false claim that you are "not defending killers."

Posted by: Bill Otis | Oct 31, 2010 12:32:01 AM

If the government is the problem why do you give it the power of life and death. Go back to the good ol’ lynch mob. By the way, the are 15 American states WITHOUT capital punishment and they are in a better situation of those with the hangman.

Posted by: claudio giusti, italia | Oct 31, 2010 4:17:13 AM

Mr. Bill, you can say I'm not reading it right but you cannot say it is not there.

"There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect. [Therefore!] [t]he motion to file documents under seal is denied as moot."

That is how the order concludes, as if it is the necessary conclusion, and it goes to the due process argument, not Baze.

Posted by: George | Oct 31, 2010 5:00:48 AM

amorgan

I am sorry you had to spend a year in Judge Merritt's chambers. That is cruel and unusual punishment. Did you hang out with Judge Martin's clerks? Were you involved when Merritt stayed Sedley Alley's execution in Tennessee when he wasn't even on the panel? And that handwritten order scheduling a hearing for the next week. Hilarious! A circuit judge going to hold a hearing by himself. It was late at night. Merritt must have thought he was a district judge.

Posted by: DaveP | Oct 31, 2010 8:56:44 AM

"Merritt must have thought he was a district judge."

Nah, I'm sure he thought that as a federal judge he could do whatever he wanted. What really would have been interesting is if the state simply disconnected the phones (thus preventing service of Merritt's order) and executed Alley in the face of it.

Posted by: federalist | Oct 31, 2010 9:19:41 AM

Claudio: I would support an Italian style death penalty, by vendetta. In Italy, the death penalty seems reserved for courageous inquisitorial judges, and prosecutors. Anyone can be reached by anyone. The local oppressed businessmen should wack the Mafia dons themselves, after capturing and torturing them a long time. Kill their families in front of them first. It is only a matter of getting organized. To deter.

You will note those states without the death penalty had a low murder rate first, before eliminating it. They also have very few members of minorities, and low rates of bastardy.

There are many problems with government for sure. Not included among them is inadequate review of death sentences. Indeed the American death sentence is the most heavily scrutinized judicial action in the world.

The reason we have the death sentence is not about government. It's about gruesome and incredibly cruel crimes like this child rape and triple murder in Connecticut. If you want to tell us that the killers and rapists there deserve merely ANOTHER of their many stints in the slammer, feel free. Most people (by 75-18) know full well what they deserve.

Posted by: Bill Otis | Oct 31, 2010 9:54:41 AM

In Italy, where there is no death penalty, except for courageous inquisitorial judges and for brave prosecutors, there is absolute legal immunity for all crimes after the first murder conviction. One has a license to kill better than that of James Bond. One could even start a good murder for hire business inside of prisons. James Bond has to answer to civil service oversight and to pesky political policy makers. No such inconvenience for the mass murderer and serial killer where Claudio comes from.

Falcone and Borsellino were killed in 1992. Since then Italian homicides dropped from 2.000 to 600. In the first 6 monthes of this year we had 250 of them against 300 in 2009.

Posted by: claudio giusti, italia | Nov 1, 2010 4:44:59 AM

"I like Claudio. He represents the Euro mind set. They think government is the solution, and respect the functionary. We think government is the problem, and government workers are worthless, bloodsucking trash."

And yet you trust these government workers to implement the machinery of death?

Posted by: Moritz3L | Nov 1, 2010 4:27:42 PM

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